NINA PAGAN VS. NEWARK HOUSING AUTHORITY (L-1541-12, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3296-14T4

NINA PAGAN,

Plaintiff-Appellant,

v.

NEWARK HOUSING AUTHORITY,

Defendant-Respondent.

______________________________________________

Argued August 15, 2017 – Decided October 2, 2017

Before Judges Messano and Sumners.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County, Docket No.

L-1541-12.

Jude Nelson argued the cause for appellant

(The Law Firm of Nelson & Associates, PA,

attorneys; Mr. Nelson, on the brief).

James G. Serritella argued the cause for

respondent (Biancamano & DiStefano, PC,

attorneys; Mr. Serritella, on the brief).

PER CURIAM

On January 30, 2011, plaintiff Nina Pagan was a tenant in a

building owned and managed by defendant Newark Housing Authority

(NHA) when an unknown and unidentified armed intruder viciously

attacked her inside her apartment. Although she admittedly had

no proof of a connection between the two events, plaintiff believed

the attack was in retaliation for her actions in April 2010,

following her six-year old son witnessing a murder outside the

apartment. Plaintiff reported that incident to NHA's management,

complaining that her son was traumatized by the events. About

three months later, plaintiff reported that her car was vandalized

while parked outside the apartment.

After the April 2010 incident, plaintiff requested transfer

to another NHA property, and NHA twice offered her units at other

sites. In each case, plaintiff refused the offer, citing the

conditions in the unit or criminal activity at the sites; at

plaintiff's request, NHA continued her on the authority's waiting

list for vacancies. After the assault, plaintiff filed an

emergency transfer request, and, in August 2011, NHA offered her

a unit at another complex, which plaintiff refused. NHA offered

plaintiff another unit in December, which she accepted, and NHA

transferred plaintiff in January 2013.

In the interim, in February 2012, plaintiff filed suit against

NHA, alleging negligence for: failing to supervise the common

areas of the complex and maintain the premises in a safe condition;

failing to relocate plaintiff; failing to comply with applicable

State and federal laws and regulations; and failing to exercise

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the degree of care required by law. NHA answered and discovery

ensued before NHA moved for summary judgment.

In his oral opinion on the record, the motion judge reviewed

certain provisions of the Tort Claims Act, N.J.S.A. 59:1-1 to 12-

3 (the TCA). He focused on plaintiff's contention that NHA was

liable for a dangerous condition on its property, N.J.S.A. 59:4-

2, or liable because it negligently failed to transfer her after

her son witnessed the murder in 2010. The judge concluded that

NHA could not be liable for a dangerous condition on its property

because of the criminal acts of third parties, and, in any event,

NHA's conduct was not "palpably unreasonable." As to plaintiff's

general negligence claim, the judge concluded there was no

"probable cause," i.e., it was mere speculation that the attack

resulted from the April 2010 incident. He also concluded NHA was

immune from liability pursuant to N.J.S.A. 59:5-4 (immunizing

public entities and employees "for failure to provide police

protection service or . . . sufficient police protection

service."). Lastly, the judge concluded plaintiff had not

sustained a "permanent loss of a bodily function, permanent

disfigurement or dismemberment" because of the attack. N.J.S.A.

59:9-2(d); Brooks v. Odom, 150 N.J. 395 (1997). The judge

dismissed plaintiff's complaint, and this appeal followed.

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Before us, plaintiff contends the judge misapplied summary

judgment standards, the TCA did not confer immunity upon NHA for

its negligent conduct in failing to transfer her and supervise its

employees, and the injuries she suffered were cognizable under

N.J.S.A. 59:9-2(d). We have considered these arguments in light

of the record and applicable legal standards. We affirm.

"[W]e review the trial court's grant of summary judgment de

novo under the same standard as the trial court." Cypress Point

Condo. Ass'n v. Adria Towers, L.L.C., 226 N.J. 403, 414 (2016)

(citing Mem'l Props., L.L.C. v. Zurich Am. Ins. Co., 210 N.J. 512,

524 (2012)). We "identify whether there are genuine issues of

material fact and, if not, whether the moving party is entitled

to summary judgment as a matter of law." Bhagat v. Bhagat, 217

N.J. 22, 38 (2014) (citing Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995); R. 4:46-2(c)).

[A] determination whether there exists a

"genuine issue" of material fact that

precludes summary judgment requires the motion

judge to consider whether the competent

evidential materials presented, when viewed in

the light most favorable to the non-moving

party, are sufficient to permit a rational

factfinder to resolve the alleged disputed

issue in favor of the non-moving party.

[Brill, supra, 142 N.J. at 540.]

We then decide "whether the motion judge's application of the law

was correct." Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387

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N.J. Super. 224, 231 (App. Div.), certif. denied, 189 N.J. 104

(2006). In this regard, "[w]e review the law de novo and owe no

deference to the trial court . . . if [it has] wrongly interpreted

a statute." Zabilowicz v. Kelsey, 200 N.J. 507, 512 (2009).

Initially, plaintiff never asserted that she suffered

injuries because of inadequate policing of security at the housing

site. Pursuant to N.J.S.A. 59:5-4, the TCA would indeed immunize

NHA from such a claim. See, e.g., Sczyrek v. County of Essex, 324

N.J. Super. 235, 240-42 (App. Div. 1999) (holding immunity barred

the plaintiff's claim that courthouse security plan was

inadequate).

Rather, we discern plaintiff's argument to be that NHA was

aware that the property presented a dangerous condition for her,

and that NHA's employees acted negligently in addressing that

danger. As to the first part of that claim, the motion judge

properly cited our decisions in Rodriguez v. New Jersey Sports &

Exposition Authority, 193 N.J. Super. 39 (App. Div. 1983), certif.

denied, 96 N.J. 291 (1984), and Setrin v. Glassboro State College,

136 N.J. Super. 329 (App. Div. 1975). In Rodriguez, after the

plaintiff was attacked and robbed in the parking lot of the

Meadowlands Race Track, he sued, alleging inadequate security and

lighting, failure to warn of known dangers and failure to maintain

reasonably safe premises. Rodriguez, supra, 193 N.J. Super. at

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41. In rejecting any argument that the public entity could be

liable for a "dangerous condition" on its property, N.J.S.A. 59:4-

1(a), Judge Michels clearly stated:

There cannot be the slightest doubt that the

mere presence at the Meadowlands complex of

persons with criminal intent or purpose does

not constitute a dangerous condition within

the meaning of the foregoing statutes so as

to impose liability upon the Authority. To the

contrary, liability cannot be visited upon the

Authority under the Tort Claims Act by reason

of the criminal assault and robbery of

Rodriguez.

[Id. at 44 (citing Setrin, supra, 136 N.J.

Super. at 333).]

In this case, NHA was not liable in a general sense for a dangerous

condition on its property.1

The issue really comes down to whether plaintiff established

a prima facie case that NHA's employees, armed with the knowledge

of the April 2010 murder incident and the vandalism of plaintiff's

car three months later, acted negligently in failing to relocate

her to another apartment. See N.J.S.A. 59:2-2(a) ("A public entity

is liable for injury proximately caused by an act or omission of

a public employee within the scope of his employment in the same

manner and to the same extent as a private individual under like

circumstances.").

1

Plaintiff essentially conceded this point at oral argument by

acknowledging she was not asserting a premises liability claim.

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We agree with the motion judge that plaintiff provided nothing

but mere speculation that the assault in her apartment was a

proximate result of NHA's alleged negligence in dealing with

plaintiff's transfer requests. See Robinson v. Vivirito, 217 N.J.

199, 208 (2014) (citations omitted) (emphasis added) ("The

fundamental elements of a negligence claim are a duty of care owed

by the defendant to the plaintiff, a breach of that duty by the

defendant, injury to the plaintiff proximately caused by the

breach, and damages.").

Plaintiff concedes that she has no proof whatsoever that the

2011 attack in her apartment was retribution for her report of her

son having witnessed the April 2010 murder, or that it was in any

way related to the vandalism of her car. The judge concluded the

attack was the result of random violence and, unfortunate as it

may be, all too common an event in some of the public housing

sites in our cities.

Plaintiff criticizes specific actions or omissions of NHA

personnel who dealt directly with her regarding her transfer

requests, and asserts, in blanket fashion, NHA negligently hired,

supervised, trained and retained those employees. The argument

lacks sufficient merit to warrant discussion in a written opinion.

R. 2:11-3(e)(2). Moreover, accepting such claims arguendo,

plaintiff still failed to establish any proximate causation.

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In light of our holding, we choose not to address whether

plaintiff's claimed injuries vaulted the threshold requirements

of N.J.S.A. 59:9-2(d).

Affirmed.

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